CFPB News: Supervisory Highlights, New Network and Policies Push Innovation and Other Developments

Manatt, Phelps & Phillips, LLP

In Consumer Financial Protection Bureau (CFPB) news, the CFPB published its Summer 2019 supervisory highlights, and focused on auto loan originations, credit card account management, debt collection, credit furnishing and mortgage originations. In this article, we discuss the first two categories (auto and credit card). The CFPB likewise unveiled a new network focused on innovation and finalized its compliance assistance, disclosure sandbox and no-action letter (NAL) policies, issuing its first NAL in the process.

On the enforcement side, the CFPB also launched a new action against a mortgage assistance relief company, its owner and its auditor.

What happened

  • Supervisory highlights. The Summer 2019 version of CFPB’s supervisory highlights is notable for the continued pragmatic approach of the Kraninger era. In this issue, we look at two aspects of the supervisory highlights (auto finance and credit cards). In the next issue, we will review debt collection and mortgage lending highlights.

    On automobile loan origination, the CFPB takes pains to point to the provisions of the Consumer Financial Protection Act (CFPA) prohibiting “abusive” acts or practices, identifying the sale of certain GAP products as a significant area of concern. The CFPB notes that one or more examinations completed in 2018 found instances in which auto lenders sold a GAP product to consumers under circumstances that led to an abusive practice. Specifically, the CFPB claims that examiners observed that lenders sold a GAP product to consumers whose low LTV meant that they would not benefit from the product. By purchasing a product they would not benefit from, consumers demonstrated that they lacked an understanding of a material aspect of the product. The lenders, said the CFPB, had sufficient information to know that these consumers would not benefit from the product. The CFPB notes that these sales demonstrate that the examined lenders took unreasonable advantage of the consumers’ lack of understanding of the material risks, costs or conditions of the product and, as a result of these examinations, have undertaken remedial and corrective actions, including reimbursing consumers for the cost of the product and establishing an LTV minimum for GAP product sales.

    On credit card account management, the CFPB focused on four issues: (1) triggered disclosures in online advertising, (2) offset of credit card debt, (3) deceptive marketing of secured credit card accounts, and (4) deceptive threats of repossession or foreclosure.

    Regulation Z requires credit card issuers to clearly and conspicuously provide certain disclosures if the advertisements contain certain pricing terms (triggering terms). In one or more examinations, the CFPB found that entities failed to provide required disclosures in a clear and conspicuous fashion, making them available solely by difficult-to-follow hyperlinks or upon completing applications.

    On offset of credit card debt, Regulation Z prohibits credit card issuers from offsetting credit card debt with funds the consumer has on deposit with the issuer. However, issuers may obtain or enforce a consensual security interest in such funds where affirmatively agreed to by the consumer and disclosed in the account-opening disclosures. Further, where a security interest is granted, the consumer must be aware that doing so is a condition for the credit card (or for more favorable account terms) and must specifically intend to grant a security interest in the deposit account. One or more examinations found that issuers offset consumers’ credit card debt against funds that the consumers had on deposit with the issuers without sufficient indication of the consumers’ awareness of, and intent to grant, a security interest in those funds.

    Under the prohibition against deceptive acts or practices in the CFPA, a practice is deceptive when (1) it misleads or is likely to mislead the consumer, (2) the consumer’s interpretation is reasonable under the circumstances, and (3) the misleading act or practice is material. These provisions were central to two types of issuer conduct: First, in one or more examinations, examiners determined that credit card issuers misled or were likely to mislead consumers by orally representing that secured credit card accounts would automatically graduate (or be upgraded) to unsecured credit card accounts within a specific time frame, such as six or 12 months after origination, so long as cardholders maintained their accounts in good standing. The CFPB concluded that the oral representations misled or were likely to mislead consumers about both the timing and likelihood of upgrade or graduation, and subsequent written disclosures were inadequate to cure the oral representations. In one or more examinations, examiners likewise concluded that credit card issuers misled or were likely to mislead consumers by representing in prescreened offers of credit that secured credit card accounts subject to an annual fee would be “periodically” reviewed for graduation (or upgrade). In fact, claims the CFPB, the issuers did not review such accounts for a year or more but did not provide additional disclosures to account holders or modify their marketing materials. Second, examiners concluded that one or more credit card issuer(s) misled or were likely to mislead consumer credit card holders by sending collection letters that suggested that the issuer(s) could repossess consumers’ automobiles, or foreclose on homes, securing loans or mortgages owned by the issuer(s). In fact, the issuer(s), again the CFPB claims, did not repossess any vehicles or foreclose on any mortgages in connection with delinquent credit card accounts, and it was against the policies of the issuer(s) to do so.
  • Innovation network. Together with the attorneys general of Alabama, Arizona, Georgia, Indiana, South Carolina, Tennessee and Utah, as well as the Florida Office of Financial Regulation, the CFPB announced the launch of the American Consumer Financial Innovation Network (ACFIN).

    Aimed at facilitating financial innovation through “greater competition, consumer access or financial inclusion in markets for consumer products and services,” the members of the network will engage in cross-jurisdictional coordination and information sharing, the CFPB said. The network also seeks to ensure that market innovations are free from fraud, discrimination and deceptive practices.

    “Federal and state coordination promotes consistency in the regulation of consumer financial products and services while facilitating consumer-beneficial innovation,” CFPB Director Kathleen L. Kraninger said in a statement. “ACFIN will provide a platform for Federal and State regulators to coordinate with each other as they develop new rules of the road and apply existing ones.”

    All of the cooperating state regulators are in jurisdictions controlled by Republican administrations. Despite this fact, the CFPB noted that it had invited all state regulators to join the network.
  • New innovation policies. Initially proposed in 2018, the CFPB finalized three new policies aimed at promoting innovation and facilitating compliance: the NAL policy, the Trial Disclosure Program (TDP) policy and the Compliance Assistance Sandbox (CAS) policy.

    As compared with its predecessor, the new NAL policy offers a more streamlined review process focusing on the consumer benefits and risks of the product or service in question, the CFPB said, and recipients are provided reassurance that the CFPB will not bring a supervisory or enforcement action against the company under the covered facts and circumstances.

    Requests for a NAL will be granted or denied within 60 days, and the letters will be posted on the CFPB’s website. Some denials may also be made public, along with an explanation of the reasons for the denial.

    The first NAL responded to a request from the Department of Housing and Urban Development (HUD) on behalf of more than 1,600 housing counseling agencies (HCAs) wondering about the application of the Real Estate Settlement Procedures Act (RESPA) to their counseling services.

    According to the letter, the CFPB will not take supervisory or enforcement action under RESPA against HUD-certified HCAs that have entered into certain fee-for-service arrangements with lenders for pre-purchase housing counseling services, providing a template for lenders to request a NAL for such arrangements.

    Under the TDP policy, the CFPB created a “Disclosure Sandbox” where entities seeking to improve consumer disclosures will be permitted to conduct in-market testing of alternative disclosures for a limited time once permission has been granted by the CFPB.

    Testing will occur over a two-year time frame, with procedures in place to permit companies to continue to use disclosures that test successfully.

    Finally, the CFPB put in place the CAS policy, which enables testing of a financial product or service where regulatory uncertainty exists. The CFPB will evaluate a product or service for compliance with relevant law and establish a “safe harbor” from liability for specified conduct during the testing period if the applicant complies in good faith with the terms of the approval.

    Approvals under the new policy will provide protection from liability under federal statutes such as the Truth in Lending Act, Electronic Fund Transfer Act and Equal Credit Opportunity Act, the CFPB said.

    “The three policies we are announcing today are common sense policies that will foster innovation that ultimately benefits consumers,” Kraninger said.
  • Enforcement action. In a new complaint filed in California federal court, the CFPB asserted that a company that sold financial advisory and mortgage assistance relief services, its president/owner, and the company’s sole auditor violated the CFPA and Regulation O.

    The company and its owner engaged in deceptive and abusive acts and practices by charging unlawful advance fees in connection with its audit services, which it falsely represented as able to “prevent foreclosure,” “a powerful and successful legal means of bringing suit against your mortgage lender,” and tailored to each consumer, the CFPB alleged.

    In reality, the auditor prepared the documents from pre-drafted templates and didn’t always read them in full before completing them, the CFPB said, accusing him of providing substantial assistance to the other defendants in violation of the CFPA.

    According to the complaint, the company and its owner charged $1,495 for the audits, selling more than 2,000 since 2014.

    While the litigation continues against the company and its owner, the auditor agreed to a stipulated final judgment and order, neither admitting nor denying the allegations. The order includes a permanent ban on offering or providing mortgage assistance relief services and consumer financial products or services. A $493,000 civil money penalty will be suspended following a $5,000 payment.

To read the Summer 2019 Supervisory Highlights, click here.

To read the ACFIN Charter, click here.

To read the NAL policy, click here.

To read the HUD NAL, click here.

To read the TDP policy, click here.

To read the CAS policy, click here.

To read the complaint, click here.

To read the stipulated judgment and order, click here.

Why it matters

The latest edition of CFPB’s supervisory highlights is educational in two ways. First, it continues to inform regulated entities, generally, on the current and future examination trends. Second, it is revealing of the CFPB’s current pragmatic approach, as certain of the enumerated activities might have resulted in consent orders during the Cordray era.

The new network and finalized policies continue the CFPB’s push for innovation. Consumer advocates continue to view some “innovation” as circumvention of federal law, but the current CFPB has moved the pendulum toward broader and more creative availability of credit. And that is likely good news for industry and consumers alike.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Manatt, Phelps & Phillips, LLP | Attorney Advertising

Written by:

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.